1

A REPORT
ON
PUNISHMENT FOR MURDER UNDER IPC
1860

By
MOHAMMED ASIF

At the office of E.Madhusudan Rao garu, Advocate

at The Court of Principal District & sessions Judge
at Karimnagar
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A REPORT
ON
PUNISHMENT FOR MURDER UNDER IPC
1860

By
MOHAMMED ASIF

A report submitted in partial fulfillment of the

requirements of BA.LLB (Hons) program of ICFAI Law
School, IFHE –Hyderabad
Distribution List:
 Faculty of Law, IFHE-Hyderabad
 Advocate Office of E. Madhusudan Rao garu.
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ACKNOWLEDGMENT
I am here over helmed in all humbleness and gratefulness to acknowledge my depth to all those who have
helped me to put this report, well above the level of simplicity and into something concrete.
This research project would not have been possible without the support of many people. The author
wishes to express his gratitude to his project guide, E.MADHUSUDAN RAO Garu who was abundantly
helpful and offered invaluable assistance, support and guidance. Deepest gratitude is also to the mentor,
Dr. S. KANNAN without whose knowledge and assistance, this report would not have been successful.
The author wishes to express his love and gratitude to his beloved family for their understanding &
endless love, through the duration of his project.
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TABLE OF CONTENTS

1. Abstract…………………………………………………………………………………………………………………06

2. Introduction…………………………………………………………………………………………………………..08

2.1 What is Murder? ………....................................................................................08

2.2 Murder in English Law…………………………………………………………………………………..08

2.3 Clause-1……………………………………………………………………………………………………….09

2.4 Mere presence not sufficient for commission of Murder: Common Intention
necessary

………………………………..10

2.5 Clause-2………………………………………………………………………………………………………10

2.6 Dathura Poisioning………………………………………………………………………………………11

2.7 Clause-3……………………………………………………………………………………………………….12

2.8 Murderous Assault…………………………………………………………………………………….12

2.9 Clause-4………………………………………………………………………………………………………13

2.10 Punishment for Murder………………………………………………………………………………14

2.11 Onus……………………………………………………………………………………………………………..16

2.12 Circumstantial Evidence…………………………………………………………………………………17

2.13 Eye-Witness…………………………………………………………………………………………………..17
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2.14 Evidence to prove death……………………………………………………………………………….18

2.15 Procedure………………………………………………………………………………………………………18

2.16 Sentence…………………………………………………………………………………………………………19

3. Conclusion……………………………………………………………………………………………………………………20
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ABSTRACT
Murder is the unlawful killing of another human without justification or valid excuse, especially
the unlawful killing of another human with malice aforethought. This state of mind may, depending
upon the jurisdiction, distinguish murder from other forms of unlawful homicide, such as manslaughter.
Manslaughter is killing committed in the absence of malice, brought about by reasonable provocation, or
diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the
most attenuated guilty intent, recklessness. Most societies consider murder to be an extremely serious
crime, and thus that a person convicted of murder should receive harsh punishments for the purposes of
retribution, deterrence, rehabilitation, or incapacitation. In most countries, a person convicted of murder
generally faces a long-term prison sentence, possibly a life sentence; and in a few, the death penalty may
be imposed.

The concept of murder in itself is a very broad concept. Except for the exceptions provided in section 300
IPC, whoever with proper knowledge and intention murders any person, shall be liable to punishment
under the ambit of this section. Punishment in the cases of murder solely depends on the nature and
gravity of the offence and could be either death penalty or life imprisonment.
For establishing the offence under IPC 302, motive, intention, medical evidence, eyewitnesses to the
particular case plays a vital role. Before holding a person guilty for committing murder, it should be
proved that the person was having prior knowledge and intention to do so and was very much aware of
the consequences act.
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INTRODUCTION
There is no offence of “Homicide” as such. A person cannot be charged with or convicted of “homicide”.
Homicide means the killing of a human being and may be lawful where, for example, fatal force was
necessary to defend oneself. The two most important offences of unlawful homicide are murder and
manslaughter. Although both are common law offences, elements of murder and manslaughter have been
modified by Acts of Parliament of United Kingdom and the penalties for each statutory. Nevertheless
crimes of homicide, and especially murder, are regarded as the most serious and abhorrent cries. The
taking of life and the impact that it can have on the family and friend of the victim give a special
significance to offences involving the killing of another human being. The seriousness with which they
are regarded is reflected in the maximum penalties. In the case of murder, the Murder (Abolition of Death
Penalty) Act 1965 stipulates a mandatory sentence. The judge has no option but to sentence the person
convicted for a murder to a term of imprisonment for life. Section 269 of the Criminal Justice Act 2003
requires the trail judge to state the minimum term that the convicted murderer should serve before he or
she is eligible to be released on license. This should reflect the seriousness of the murder and should be
set by reference to one of three starting points i.e., whole life, thirty years, fifteen years.

What is Murder?

Firstly - If the act by which the death is caused is done with the intention of causing death or-
Secondly - If it is done with the intention of causing a bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused or-
Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death or-
Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all
probability, cause death, or such bodily injury as it likely to cause death, and commit such act without any
excuse for incurring the risk of causing death or such injury as aforesaid.

Illustration:-
a. ‘A’ knows that ‘Z’ is laboring under such a disease that a blow is likely to cause his death, strikes
him with the intention of causing bodily injury. ‘Z’ dies in consequence of the blow. ‘A’ is guilty
of murder, although the blow might not have been sufficient in the ordinary course if nature to
cause death of a person in sound state of health. But if ‘A’, not knowing that ‘Z’ is laboring under
any disease, gives him such a blow as would not in the ordinary course of nature to kill a person
in a sound state of health, here ‘A’, although he may intend to cause bodily injury, is not guilty of
murder, if he did not intend to cause death or such bodily injury as in the ordinary course of
nature would cause death.
b. ‘A’ intentionally gives ‘Z’ a sword-cut or club wound sufficient to cause the death of a man in the
ordinary course of nature. ‘Z’ dies in consequence. Here ‘A’ is guilty of murder, although he may
not have intended to cause Z’s death.

Murder in English Law:-

Murder is unlawfully causing the death of another with malice aforethought express or implied. Malice
aforethought in murder, practically means
1) An intent to kill or do grievous bodily harm to the person who is killed.
2) An intent to kill or do grievous bodily harm to anyone else.
3) An intent to do any criminal act which is probably cause death or grievous bodily harm to
someone.
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4) An intent to oppose by force any officer of justice who is lawfully arresting or keeping in custody
someone whom he is entitled to arrest or keep in custody, Provided the accused knows that he is
such officer of justice.

Throughout the web of English criminal law one golden thread is always to be seen, that is the duty of the
prosecution to prove the prisoner’s guilt. In every charge of murder, if the prosecution have proved
homicide, namely, the killing was malicious and murder, as there is no presumption that the fact was
malicious, and at no point of time in a criminal trail can a situation arise in which it is incumbent upon the
accused to prove his innocence, subject to the defense of insanity and subject also to any statutory
expectation. Where intent is an ingredient of a crime there is no onus on the accused to prove that the act
alleged was accidental1

Clause 1. - Act by which the death is caused is done with the intention of
causing death:-
‘Death’ means the death of a human being (S.46). It will be murder whether the death is caused of a
grown-up person or a newly-born child.2
Whether the intention to kill is present, the act amounts to murder; where such an intention is absent,
the act amounts to culpable homicide not amounting to murder. To determine what the intention of
the offender is, each case must be decided on its own merits. Where it is proved that the accused fired
a gun shot at such a close range that it could not have had other than a fatal effect and it is indicative
of the intention of the accused that after firing at one person he reloaded the gun and fired another
shot at another person there is a clear indication of his intention to commit murder 3. Where a person
fires two shots successively at another person his murderous intent is clearly evident 4. The law looks
as regards intention to the natural result of a man’s act and not to the conditions of his mind. From a
legal point of view a person intends whatever he gives others reasonable grounds for supporting that
he does intend. Where a man strikes lathi blows on his head of the deceased mercilessly and
practically kills him on the spot, he is guilty of murder 5. Where a man stabs another in a vital part he
must be held to have intended to cause death, and if death ensues either directly from the wound or in
consequence of the wound creating conditions, which give occasion to the appearance of a fatal
disease , the person inflicting the wound is guilty of murder 6. Absence of premeditation will not
reduce the crime of murder to culpable homicide not amounting to murder 7. But where there is
nothing more than a fatal result to indicate an intention to cause death and no weapon is used, it is
unsafe to convict of murder8.
If a person intends to cause death of another and does an act in furtherance of that intention, which act
does not in fact cause the death intended and in the belief that the said act has caused death he does
another act for the purpose of hiding the traces of the crime and such act results in death, the offender
can be convicted of murder. Where it appeared that the accused deliberately intended to kill the wife
of one of them, that they decoyed her to a certain place and after an attempt to strangle her, dragged
1
Woolmington v. The Director of Public Prosecution’s (1935) A. C. 462.
2
Irowa, (1888) Unrep. Cr. C. 401.

3
Rajendra Prasad Singh, (1931) 34.Cr. L. J. AIR (p) 147.

4
Ahmed Yar Khan (1909) P.W.R.No.1 of 1910, 11 Cr. L. J. 171.
5
Patan,(1932) 9.O.W.N.350,33 Cr. L. J 537.
6
Nga Dwe, (1904) 1 Cr. L. J. 909.
7
Mahomed Elim Abdool Kurreem, (1865) 3. W.R.(Cr)40.

8
Daude Gangadu (1881) 1 weir 299.
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her immediately either in an unconsicious or in semi-consicious condition on to the railway line and
placed her in front of the train and she was decapitated by the train, it was held that the accused were
guilty of murder. The two acts were intimately connected with each other and latter act followed
immediately upon the former, that transaction being to kill the deceased 9.
In Kaliappa’s case there was at the beginning an intention to cause death. The accused attacked the
deceased and caused three punctured wounds on her head and threw her body into a well. The
medical evidence showed that the wounds by themselves not sufficient to cause death. It was held
that since the intention to cause death was evident even from the beginning, and such intention was
apparently completely carried out into effect though not in effect at the first stage, and since the act
was so closely connected in time and space with the next act of throwing body into a well and the
result of the actions taken as a whole was clearly to carry out the intention o kill with which intention
they began to act, the conviction for murder was right 10.

Mere presence not sufficient for conviction of murder: common intention necessary-

Mere presence as a member of a gang which has committed murder is insufficient to support a
conviction of murder. It must be shown that murder was the common object of the gang and that the
accused did some act in furtherance of common object 11. Where the accused are present at the time of
murder and thereby give moral support to it, they are as much as guilty of murder as the murderer
himself12. Where the accused a menial servant, accompanied his master with the intention of
rendering such assistance as might be required when the latter had announced his intention of
committing murder, it was held that the accused was guilty of murder 13. Where a blow was struck by
‘A’ in the presence of, and by the order of ‘B’, both were held to be principles in the transaction; and
where two persons joined in beating a man, and he died ,it was held not necessary to ascertain exactly
what the effect of each blow was14.

Clause 2. - With the intention of causing such bodily injury as the offender
knows to be likely to cause death:-

In order to convict a person of the offence of murder under this clause is has to be found that he had
the intention of causing the injury and also that he had the knowledge that the injury which he
intended to inflict was likely to cause death. The word ‘knowledge’ imports a certainty and not
merely a probability15. If a man strikes another on the head with a stick when he is asleep, and
fractures, skull, knowledge of likelihood of causing death must be presumed; and the offence
committed is murder16. As to the intention to be presumed in cases of blows on the head with a stick,
instinct at least, if not knowledge and experience, tells every man to that to hit another human being
any violent blow on the head may possibly result or is likely to result or will probably result in
serious injury to the person struck, but knowledge , belief, or expectation of the amount of injury that
may be caused must depend upon what is used in inflicting the blow and the force with which the
blow is delivered. Repeated blows or even a single blow forcibly delivered with a heavy weapon
9
Kaliappa Goundam (1933) 57 Mad. 158.
10
Tabhamani (1943) AIR (M) 571.
11
Wansarapu Baladu (1881) 1 Weir 296.
12
Tulli (1924) 47 All.276.

13
Golla Synyasi (1881) 1 Weir 296.
14
Mohmed Asger (1874) 23 W.R.

15
Gahbar Pande, (1927) 7 Pat. 638.
16
Behari (1953) Cr. L. J. 565.
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would make the offence a murder, but where a sudden blow is struck with a stick that is not heavy,
the offence would be culpable homicide not amounting to murder 17. Even a most illiterate and
ignorant person will realize that a savage blow with an axe in the region of the abdomen and spine is
bound to cause death or injury which will result in death. Causing of a serious injury on a vital part of
the body of the deceased with the dangerous weapon, like an axe must necessarily lead to the
inference that the appellant intended to kill the deceased. His act would therefore amount to murder. 18

This clause also applies in special cases where the person injured is in such a condition or state of
health that his death would be likely to be caused by an injury which would not ordinarily cause the
death of a person in sound health, and where the person inflicting the injury knows that owing to such
condition or state of health it is likely to cause the death of the person injured. 19

Dhatura poisoning-

Where a twenty years of women of age was found to have administered dhatura (a poisonous herb) to
three members of her family, who ultimately recovered, it was held that she was guilty of attempt to
commit murder as she must be presumed to have known that the administration of dhatura was likely
to cause death, although she might not have administered it with that intention. 20 It is not clear from
the judgment in this case how the court came to that finding, as it was held that although the accused
knew that she might cause death she had no intention to do so, but intended only to incapacitate
temporarily the persons to whom she administrated the dhatura in order that she might run away
wither lover. The same High court in a subsequent case said: “Dhatura is not exactly a deadly poison,
and may often be given for the purpose of facilitating robbery, dhatura was administrated by two
persons to certain travelers, in consequence of which one of the travelers died and others were made
seriously ill, that in respect of the traveler who died, the offence committed was that of grievous hurt,
and in respect of the travelers who did not die, the offence committed was that under S.328. 21 This
case is of doubtful authority. The same High court has now laid down that a person who recklessly
administers dhatura to another is guilty, if death ensues, of the offence of murder, and not merely of
culpable homicide not amounting to murder or grievous hurt. 22 Where dhatura was administered with
the object of facilitating robbery in such a quantity that the person to whom it was given died in the
course of a few hours, it was held that the person to so administrating dhatura was guilty of murder.23
The former Chief Court of Punjab followed this decision in a case in which the accused administered
dhatura poison to ‘A’ and ‘B’, both of whom died from the effects thereof and on the following day
he administered the same poison to ‘C’ and ‘D’, the former got ill and recovered, but the latter died. It
held which, even if not committed with the intention of causing death or causing bodily injury likely,
to the knowledge of the offender, or in the ordinary course of nature sufficient, to cause death, was so
imminently dangerous that it must in all probability cause death or such bodily injury as is likely to
cause death; and that the accused was guilty of offence under S.307 as regards the poison

17
Baba Naya, (1927) 5 Ran. 817.
18
Dibia (1952) A.L. J.400.

19
Ram Asre (1922) 26 O.C. 18 AIR (O) 97.

20
Tulsha (1897) 20. All.143.

21
Bhagwan Din, (1908) 30 All. 568, 571.
22
Nanhu (1923) 45 All.577.

23
Gutali, (1908) 31 All. 148.
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administrated to ‘C’. The Court observed: “It would be putting a premium on murder to hold that the
giving of dhatura in this reckless fashion is comparatively a minor offence. We cannot agree with the
dicta in the judgement of the Allahabad High Court in the case of Emperor V. Bhagwan Din and we
prefer, in the interest of public safety, to follow the ruling of the same High Court in the case of
Emperor V. Gutali. As remarked by the learned judges in the latter case, ‘Although death does not
always follow from dhatura poisoning, yet it does follow in a considerable proportion of cases’”. 24

Clause 3 - With the intention of causing bodily injury to any person sufficient in
the ordinary course of nature to cause death.

The distinction between this clause and clause 2 and S.299 depends on the degree of probability of
death from the act committed. If from the intentional act of injury committed the probability of death
resulting is high, the finding should be that the accused intended to cause death or injury sufficient in
the ordinary course of nature to cause death and the conviction should be of murder; if there was
probability in a less degree of death ensuing from the act committed, the finding should be that the
accused intended to cause injury likely to cause death and the conviction should be of culpable
homicide not amounting to murder.25 It is not correct to say that an injury sufficient in the ordinary
course of nature to cause death is an injury, which inevitably and in all circumstances must cause
death. If the probability of death is very great, the requirements of this clause are satisfied, and the
fact that a particular individual may by the fortunate accident of having secured specially skilled
treatment, or being in possession of a particularly strong constitution have survived an injury which
would prove fatal to the majority of persons subjected to it, it is not enough to prove that such an
injury is not sufficient “in the ordinary course of Nature” to cause death. 26 If a person knowingly
causing injuries which are more likely to cause death than not in the ordinary way, his offence falls
either under the second or third clause.27 In the case of some classes of injuries, it is easy to say what
was intended; for instance, in a wound with a knife in the abdomen. A man who inflicts such a wound
intends to inflict a wound which he must know will be dangerous to life. But, in the case of wounds
with blunt instruments, the intention is not so clear. The effect of a severe blow upon one man will be
very different from what it will be upon another, and it does not follow, when the victim dies, that it
was intended to inflict such injury as is sufficient to cause death. A judge must always find whether
the bodily injury inflicted was that which was intended by the accused. 28

Murderous assault-

A man, who has either hacked a fellow creature about in a most merciless fashion or has practically
pounded him to death, cannot escape conviction of murder merely by urging that he was careful to
avoid injuring a vital part.29 Where the accused caused the death of another person by giving him un
24
Lala (1910) 12 P. L. R. No. 19 of 1919, (1919) AIR (L) 420.

25
Dalijit Singh (1936) 39 Cr. L.J.92 91937) AIR (N) 274.

26
Singaram Padayachi (1944) 1 M. L. J. 25, (1944) AIR (M) 223.

27
Arjan Singh (1942) Lah. 145.

28
Muvvalla Kondiya (1882) 1 Weir 300.

29
Kutub Ali (1911) P.R. No. 14 of 1911, 12 Cr. L. J. 597.
 12

merciful thrashing with sticks, smashing both bones of forearm, the right elbow and right knee-cap,
and the occipital area on the right temporal area of the skull, it was held that he was guilty of
murder.30 The accused killed a person by striking him one blow on the head with a long and heavy
bamboo. The nature of the injury indicated that very great force was used. It was held that although
the weapon used was not one that would be necessary cause a fatal injury, the force used was great as
to show that the accused intended to cause injury sufficient in the ordinary course of nature to cause
death, and that he was guilty of murder.31 There can be no doubt that a person delivering a violent
blow with a lethal weapon like a dang(club) on a vulnerable part of the body such that the head must
be deemed to have intended to cause such bodily injury as he knew was likely to cause death of the
person to whom the injury was caused.32 The accused was bathing in the street in front of his house
causing “slush” in the road. The person living in a house opposite protested and in the course of the
quarrel the water pot of the accused was broken. The accused then went into his house shouting abuse
and brought a rice-pounder, which was heavy piece of wood, two yards long and about three inches in
diameter. He struck that person with it on the head causing a contused wound rendering him
unconscious. Then the aunt of that person intervened. The accused struck her also on the head with
the rice-pounder. She felt down unconscious and bleeding and died seven days later owing to fracture
of the skull. It was held that the case came within ill. To this section and that the accused was guilty
of murder.33

Clause 4 - Person committing the act knows that it is so imminently dangerous

that it must, in all probability, cause death, or such bodily injury as is likely to
cause death…..without any excuse for incurring the risk of causing death.

This clause cannot be applied until it is clear that clauses 1, 2, 3 of the section each and all of them
fail to suit the circumstances. It does not apply to the case in which death has been caused by any act
done with the intention of causing bodily injury to a particular person. In such a case the question
whether the offence is murder or not must be decided by reference to the first three clauses of the
section is murder or not must be decided by the reference to the first three clauses of the section and
the exceptions.34
“To cause death merely by doing an act with the knowledge that it is so imminently dangerous that it
must in all probability cause death, does not constuite murder as defined in cl.4 of S.300, but is mere
culpable homicide not amounting to murder. In an order that an act done with such knowledge should
constuite murder, it is also necessary that it should be committed ‘without any excuse for incurring
the risk of causing death or such bodily injury’. An act done with such knowledge alone is not prime
facie, an act of murder, subject to proof there is some excuse. It becomes an act of murder, only if it
can be positively affirmed that there was no excuse. The requirements of this clause is not satisfied by
the act of homicide being the act of extreme recklessness it must be a wholly inexcusable act of
extreme recklessness. It follows that when in view of all the circumstances found to exist in a
particular case, it cannot be affirmed of an act falling in other respects within cl.4 of S.300. that it was
30
Samand Singh (1918) P. R. No. 3 of 1919 AIR (L) 382.

31
Nga Khan (1921) 11 L.B.R. 115, 23 Cr. L.J. 111, AIR (LB) 4.

32
Preman (1925) 26. P.L.R. 363, 28 Cr. L. P. 966, (1928) AIR (L) 93.

33
Venkata Nari (1937) Mad. 684.

34
Shwe Ein (1905) 3 L. B. R. 122, 3 Cr L. J. 355 12 Burma L.R. 171 Followed in Nga Na Ban (194-06) 5 Cr. L. J. 306.
 13

committed without any excuse for incurring the risk mentioned, then such act now withstanding that
it was done with the knowledge that it was so immensely dangerous that it must in all probability
cause death, is merely culpable homicide not amounting to murder U/S 299,cl.(3). IT is culpable
homicide because the act causing death is done with the knowledge that the actor is thereby likely to
cause death; it is not murder because it does not satisfy both parts of the definition of murder in cl.4
of S.300. Being culpable homicide and being murder, the act is necessarily culpable homicide not
amounting to murder.35
This clause is also appears to be designed to provide for that class of cases where acts resulting in
death are calculated to put the lives of many persons in jeopardy without be aimed at any one in
particular, and are perpetrated with a full consciousness of the probable consequence. As for example,
where death is caused by firing a loaded gun into a crowd, by poisoning a well from which people are
accustomed to draw water, by opening the draw of abridge just as a railway passenger train is about
to pass over it. In such and the like cases, the immensely dangerous act, the extreme depravity of
mind and the regardlessness of human life, properly place the crime upon the same level as the taking
of life by deliberate intention.36 Any person of average intelligence knows that the explosion of bomb
in a crowded room, however carefully it may be thrown, is an imminently dangerous act such as he
must be deemed to know would in all probability cause death or at least such bodily injury as is likely
to cause death. Accused described by their counsel as persons of exceptional intelligence, must
therefore be presumed to know that their act was dangerous and likely to cause death. The fact that
accused has no deliberate intention of killing any particular individual does not take their case outside
cl.4 of this section when they had no excuse for running the risk. 37

S.302 PUNISHMENT FOR MURDER-

“Whoever commits murder shall be punished with death, or imprisonment for life, and shall
also be liable to fine.
Where the legislature recognizes two sorts of punishment it implicitly recognizes the existence of
degrees in crimes technically the same. These degrees are to be determined by the circumstances of
the case, and among them, and perhaps the most important of them, are the state of mind of the
offender, and the degree of moral obliquity displayed by the act. There is an undoubted connection,
though one not easily formulated, between the ethical quality of a crime and its proper punishment.
Although the law has provided an alternative punishment, either is not to be passed indifferently at
the discretion of a judge; but where the accused has been found guilty of deliberate murder, he must
pass sentence to death, and the minor sentence should only be awarded when there is as sufficient to
reduce the killing to the offence of culpable homicide not amounting to murder, still is ground for
looking leniently on the act.38 The sentence consequent upon a conviction for murder must be death.
If there exist any grounds for mercy, that circumstance will have to be considered by the government
or its executive minister, and all that a Court of Justice can do is to submit a recommendation after

35
Par Plowden J., in Barkatulla (1887) P.R.No. 32 Of 1887, P.64.

36
Manindra Lal (1937) 41 C.W.N.1187 (1937) AIR (C) 432.

37
Bhagat Singh (1930) 31 Cr. L.J. 290, 31 P. L. R. 73, (1930) AIR (C) 432.

38
Per Wilkinson J., in Kamal (1873) P.R. No. 13 of 1873.
 14

passing the sentence of law.39 But the law lays down two sentences in cases of murder, and naturally
the court leans towards the more lenient sentence if it is consistent with the ends of justice. 40

In Burma, where knifes are freely used on the slightest occasion, it is unsafe to lay down as a general
rule that mere absence of premeditation or deliberate intent to kill is a good ground for abstaining
from passing a capital sentence in a case where a knife is used. To justify the passing sentence of
imprisonment for life in cases of murder the judge should find that there are really extenuating
circumstances not merely an absence of aggravating circumstances. The extreme sentence is the
normal sentence; the mitigated sentence is the exception. It is not for the judge to ask himself whether
there are reasons for imposing the penalty of death but whether there are reasons for abstaining from
doing so.41 It is not necessary to pass sentences of death on all the persons taking part in the ordinary
murder as distinguished from murder in dacoity. A death should be reserved for the principal
offenders.42
The following are suggested as some reasons for not passing a capital sentence upon conviction under
S.302-
1. The offender being under eighteen years of age.

2. There having been no intention to commit murder, the offence falling under the fourth clause
of section.300, Indian Penal Code.

3. The murder, though intentional, having been committed without premediaiation, and in the
heat of passion, without special brutality.

4. The murder having been committed upon grave provocation the provocation not been both
grave and sudden so as to reduce the offence to culpable homicide not amounting to murder.

5. Reasonable doubt as to the sanity of the offender at the time of committing murder, actual
insanity not to be proved.

This is not intended to be an exhaustive statement of reasons for not passing a capital sentence. In each
case the Sessions Judge must exercise his own description with delibratation. The extreme penalty of the
law should be reserved for the cases of deliberate murder for cases where murder is committed to
facilitate the commission of other offence or to avoid arrest for an offence, and for other heinous cases of
murder.43

The Supreme Court has held that when a murder is committed is a particularly cruel and revolting one, it
is necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime
might induce an instinctive reason against a dispassionate judicial scrutiny of the facts of law. 44 Where the
39
See said, (1896) Unrep, Cr.C. 852.

40
Per Crump, J., in Shafi Ahmed case, No.22, 2nd Criminal Sessions, decided on May 23,1925( unrep.Bom.).

41
Nga Tha Sin (1902) 1 L. B .R. 216.

42
Mi Shabi (18990 P. J. L. B 564.

43
Per Hosking, J. C. in Maung U, (1894) P.J.L.B. 112, 114.

44
Kashmira Singh (1952) Cr L. J. 839.
 15

deceased died in circumstances which admit of either disease or homicide by poisoning, one must look at
the conduct of the accused both before and after the death of the deceased, that the corpus deliciti could
be held to be proved by a number of facts which render the commission of the crime certain, and that the
medical evidence in the case and the conduct of the accused unerrigently point to the conclusion that the
death of the deceased was the result of the administration of some unrecognized poison or drug which
would act a s poison and the accused was the person who admistrered it. 45

Onus –

The prosecution must prove the circumstances which ordinarily constuite the offence of murder; and the
accused, the circumstances if any of exceptions which takes the case out of that category. 46 The burden
lies on the prosecution to establish that the act alleged to constuite murder was really the act of a person
other than the deceased. The burden is not cast upon the accused person of proving that no crime has been
committed though it has been established that the accused has special knowledge on the point whether a
crime was committed or not.47 If a man takes away the life of another, the onus is on him to show the
circumstances which justify his doing so. The onus of proving grave and sudden provocation, such as
would reduce the offence of murder to one of culpable homicide not amounting to murder, is on the
accused.48
The legal position regarding the burden of proof in the context of the plea of insanity may be stated in the
following propositions:

1. The prosecution must prove beyond reasonable doubt that the accused has committed the offence
with the requisite mens rea; and the burden of proving that always rests upon the prosecution
from the beginning to the end of the trail.

2. There is a rebuttal presumption that the accused was not insane, when he committed a crime, in
the sense laid down in S.84: the accused may rebut it by placing before the court all the relevant
evidence- oral, documentary, or circumstantial, but the burden of proof upon him is no higher
than what which rests upon a party in civil proceedings.

3. Even if the accused was not able to establish conclusively that he was insane at the time he
committed the offence, the evidence placed before the court by the accused or by the prosecution
may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of
the offence, including mens rea of the accused and in that case the court would be entitled to
acquit the accused on the ground that the general burden resting on the prosecution has not been
discharged.49

In case of murder it is unsafe to rely upon the evidence of witnesses who have resiled from their pervious
statements. Where the evidence given at the trail did not implicate the accused but the earlier statements

45
Anant Chintaman Lagu (1960) II S. C.R. 460, 62, Bom L. R. 371.

46
Sheikh Choollye (1865) 4. W. R.(Cr) 35.

47
Kanakshibai Paiialin(1939) M.W. N. 883, AIR (M) 1.

48
Rakha (1925) 6 Lah 171, 175.

49
Dahyabhai Chhaganbhai Thakkar (1964) AIR S.C. 1553, 5 Guj L.R. 911.
 16

recorded under section.288 and 164, criminal procedure code, tended to implicate him and the motive
alleged was not proved, it was held that the conviction for murder could be sustained. 50

Circumstantial evidence -

In Deonandan Mishra’s case the Supreme court has held that in order to convict a person on
circumstantial evidence, the circumstances relied upon in support of the conviction must be fully
established by those circumstances must be so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused. It has also held in that case that in such a case
not only should the various links in the chain of evidence be clearly established, but the completed chain
must be as such to rule out of a reasonable likelihood of the innocence of the accused.
A conviction on circumstantial evidence cannot be based unless and until all the inferences to be drawn
from the won history of the case point so strongly to the commission of the crime by the accused that the
defense theory appears on the face of it impossible or highly improbable. The charge of the murder, like
any other charge of an offence, can be established by inferences, but when there is extremely little in the
way of direct evidence is due to the accused that there should be no exaggeration of minor incidents in the
case and that each inference against him should be verified with scrupulous accuracy. 51
Circumstantial evidence must be consistent, and consistent only with the guilt of the accused; if the
evidence is consistent with any other rational explanation, then there is an element of doubt of which the
accused must be given the benefit. One of the circumstances which have to be taken in to account is the
fact that the accused has offered no explanation, or has offered a particular explanation; but it must be
borne in the mind that the accused cannot go into the witness box, and is not bound to give any
explanation at all. It is unsafe to convict a person of murder on the circumstantial evidence, where the
separate pieces of circumstantial evidence relating to the movements of the accused and which converge
on their guilt bear palpable signs of conviction and do not fit in with the conduct of rational persons.

Eye-Witness-

There is no rule of law that if there be no eye-witnesses to a murder, the accused should not be sentenced
to death. It is not difficult to produce false evidence of eye-witnesses. It is on the other hand, extremely
difficult to produce circumstantial evidence of a convincing character and therefore circumstantial
evidence, is conviyincing, and is more cogent than the evidence of eye-witnesses. 52 When the evidence of
eye-witnesses is inconsistent with the medical evidence, it is unsafe to convict the accused. 53 Recent and
unexplained possession of the stolen property, while it would be presumptive evidence against the
prisoner of robbery would similarly be evidence against him on the charge of murder. 54

Evidence to prove death –

The minimum evidence, which is necessary to prove in a criminal case that a person is dead, would
consist of either the dead body being available or somebody’s statement, who knew the deceased, that he

50
Ayyamperumal Plilai (1925) M.W.N. 319,22, L. W 405, AIR (M) 879.

51
Bhagwan Karu, (1911) 12 Cr. L. J. 412.

52
Tulsi Gangota (1932) 34 Cr. L. J. 395, AIR (P) 180.

53
Kripal Singh (1953) P. L.R. 463.

54
Ravunni Nair (1957) Cr. L. J. 751.
 17

had seen the dead body or at any rat0e, some statement of some witness to the effect that he had seen the
deceased being done to death. In the absence of any evidence of this kind it is impossible to hold merely
from the fact that certain person has not seen for a certain period of time that he or she is dead. It may be
that from the circumstances, about which the prosecution has led evidence, some suspicion might attach
to the accused in the connection; but if there is no evidence to prove that the person is dead, the charge of
murder or the charge of disposing the dead body is clearly unsustainable. 55

Procedure-

Cognizable→ Warrant→ Not bailable→ Not compoundable→ Triable by Court of Session

In all ordinary cases, the issue ought to be tried, and ought not to be prejudged, by any authority less than
the authority of a Court of Sessions. It is the duty of the Court first of all to consider whether the case is
not of murder as defined in S. 300, and if it considers that it does not fall within the definition, to give
reasons. If the accused intended to cause such injuries as were likely to result in death it must be
presumed that they knew that such injuries were likely to cause death as a person must be presumed to
know the natural consequences of his act. The first part of S.304 should be applied only where the offence
is not murder by reason of its falling within one of the exceptions of S. 300. 56 If the case falls under one of
the exceptions to S.300 and the Judge convicts the accused on the charge of culpable homicide not
amounting to murder, he should record under which of the exceptions the case falls. 57
In cases where it is difficult to determine whether the offence committed by the accused is culpable
homicide or culpable homicide amounting to murder the accused should be convicted of the lesser
offence. The law prescribes only two possible punishments for murder-death or imprisonment for life. It
is the duty of the Sessions Judge to examine every commitment order bearing this in mind, and if there is
any possibility that murder has been committed he must either try himself, or send it to an Additional
Sessions Judge, if one is available. Should a court not empowered to impose the legal sentence find that a
case of this type has been inadvertently transferred to it, it should not proceed to try it, but should return
the case at once to the transferring authority for necessary orders. 58

Sentence-

While considering the different decisions regarding the appropriate sentence to be passed when
the accused is convicted under S.302, it should be borne in mind that before the amendment of
S.367 (5), criminal procedure code by the criminal procedure code (amendment) Act, 1955
(XXVI of 1955) which came into force on January 1,1956, on a conviction for an offence
punishable with death if the court sentenced the accused to any punishment other than death, the
reason why sentence of death was not passed had to be stated in the judgment. It has been held
by the Allahabad High Court that since the amendment of S.367 (5), criminal procedure code,
the question of proper sentence when accused is convicted of an offence punishable with death is
to be decided like any other point for determination with the decision thereon and the reasons for

55
Bhagawatilal (1955) R. L.W.140.

56
Gajaraj (1942) 18 Luck. 235.

57
Kalika Misser (1866) 1 Agra 3.

58
Bhola Bind (1943) 22 Pat 447.
 18

decision.59 The High Court of Bombay has held that in awarding the alternative sentence of
imprisonment for life under S.302 a discretion has to exercised judicially and the reasons for the
exercise of discretion should be given in the order whether the statute requires such reasons to to
be given or not. The amendment of S.367 (5), criminal procedure code, does not affect the law
regulating punishment under penal code. This amendment relates to procedure and now courts
are no longer required to elaborate the reasons for not awarding the death penalty but they cannot
depart from sound judicial considerations preferring the lesser punishment.60 The correct
approach to the question of in sentence, now that is upon a conviction for a murder, the Judge
should ask himself the question, “Are there any aggravating circumstances in this case which
imperavatively call for the exaction of the extreme penalty?”.61

The question of sentence has to be determined, not with reference to the volume or character of
the evidence adducted by the prosecution in support of the prosecution case, but with reference
to the fact whether there are any extenuating circumstances which can be said to mitigate the
enormity of the crime. If the court is satisfied that there are such mitigating circumstances, only
then it would be justified in imposing the lesser of the two sentences provided by the law. The
question as to what punishment should be imposed for the court to decide in all circumstances of
the case with particular reference to any extunening circumstances.62 While awarding sentence
for an offence under this section the conduct of the murderer, the nature of the temptation to
which he yielded, the manner in which the crime was committed are some of the considerations
which will weigh with the court. But the code provides no exception for young person on the
ground that they are young.63

CONCLUSION
59
Satya Vir (1958) Cr.L.J. 1266.

60
Ram Singh (1960) Cr. L. J. 1536.

61
Amalla Koteswara Rao (1963) I Cr. L. J. 733.

62
V. Thevar (1957) A I R S.C. 614.

63
Ram singh (1902) A L .J 499.
 19

Homicide and murder are complex events, with the outcome determined by a variety of factors.
These can be victim related, offender related, situation related, or environmental. A homicide
involves the killing of one person by another, while a murder involves the killing of another with
intent. Even this distinction does not canvass the nuances of each act, with homicide and murder
each being different based on the relationship between victims and offenders or the context or
circumstance of the offense. There can be no doubt that homicide and murder are complicated
matters, and that any given instance of killing may defy ready identification, classification, or
disposal in the criminal justice system.
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